HKSAR v. PROGIN MARC GERARD

HCMA 188/2022

[2023] HKCFI 2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 188 OF 2022

(ON APPEAL FROM ESCC 515 OF 2020)

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JUDGMENT

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Background

1.  The Respondent was charged with one count of “aiding and abetting other person unknown to behave in a noisy or disorderly manner with intent to provoke a breach of peace or whereby a breach of peace is likely to be caused”, contrary to section 17B of the Public Order Ordinance, Cap 245, and section 89 of the Criminal Procedure Ordinance, Cap 221.

2.  The Respondent was acquitted after trial and the learned Magistrate awarded costs to the Respondent. 

3.  Subsequently the Appellant applied for review of the Magistrate’s decision to acquit and on the costs order pursuant to section 104 of the Magistrates Ordinance, cap 227. The learned Magistrate dismissed both applications for review and awarded further costs to the Respondent for the review hearing.

4.  Thus, the Appellant lodged this appeal pursuant to section 19 of the Costs in Criminal Cases Ordinance, Cap 492, on the following grounds:

(1)  the learned Magistrate erred in the exercise of her discretion in awarding costs of the trial to the Respondent in light of all the circumstances of the case when the Respondent brought suspicion upon himself by his conduct;

(2)  consequential upon ground (1), the learned Magistrate erred in awarding costs of the review hearing arising from the Trial Costs Order to the Respondent.

 Evidence at trial

5.  The Prosecution called a witness, Mr Lin Nan (“PW1”).  On 4 October 2019, PW1 worked in an office situated at Chater House, 8 Connaught Road Central.  On that day, he went out to buy his lunch and was carrying his lunchbox from the Landmark via the underground passage of Central MTR station and exited at Exit E, which was right outside the Chater Road entrance of Chater House.

6.  When he emerged from the exit, he saw about a hundred people protesting at the junction of the roadway and pavements.  Out of curiosity, he went to have a look and took out his mobile telephone to film the crowd.  Later, he was approached by a female person who first spoke to him in Cantonese but PW1 replied in Putonghua, the female said in English to PW1, words to be effect that if he did not speak Cantonese, he should go back to his home. 

7.  Then, more than 5 people who were masked dashed towards PW1 and started shouting at him.  PW1 said they looked furious, and more people came up and there was some pushing.  PW1 described the situation as chaotic and eventually his lunchbox dropped onto the ground.

8.  PW1 then went towards Chater House accompanied by a female colleague and followed by the crowd.  PW1 said he was frightened and kept scrolling on his phone, wanting to find someone who could assist him. He was then surrounded by a crowd, yelling abusive language, telling him to go back to the Mainland.  That can be seen from the CCTV recordings that were played in Court.  The crowd was getting unruly and rowdy, and was pointing at PW1.  From the CCTV, one could see that PW1 was appeared confused and frightened.

9.  However, when PW1 had almost reached the entrance to Chater House, he turned and said to the crowd in Putonghua, “We are all Chinese” (我們都是中國人).  Then PW1 turned and was going to walk through the opened door of Chater House, when the Respondent came out from the crowd, walked in front of PW1, and closed the door, thus blocking PW1’s passage to safety. It was clear from the CCTV footage played in Court that PW1 was taken back by the action of the Respondent and hesitated as to what he could do next. 

10.  Meanwhile, the Respondent was taking photographs of PW1 with his camera.  It was at that moment that a person dressed in black attacked PW1’s head and shoulder, thus injuring him and knocking his glasses to the ground where it broke.  Eventually, PW1 successfully entered the building after his colleague opened the door for him.  While he was walking through the door, someone from behind threw an umbrella at him which hit his head.  The learned Magistrate found PW1 to be an “honest and reliable witness”.

Defence Case              

11.  The Respondent gave evidence and said he was an amateur photographer, that after his retirement he found a hobby in photography.  His interest was in landscape and documentary-style photography. The only reason he went in front of PW1 and closed the door of Chater House was he wanted to get a better shot of PW1.  He never intended, in any way, to block the passage of PW1.

12.  The Respondent said that he had lived in Hong Kong for 43 years, and after his retirement in 2007, he took up photography as a hobby.  

13.  On the day of the incident, the Respondent said he did recognise that PW1 was a Mainlander, and that the crowd that was following PW1 was noisy and hostile.  In order to take a better photograph of PW1 from the front, he then at the crucial moment went in front of PW1 and “swing the door to get to the back of it in order to take a very good photo of PW1”[1]. 

14.  The Respondent did confirm in Court that he was interested in social demonstration since 2012.  [2]   He knew that PW1 was the target of the shouting and that the crowd was “furious and hostile towards PW1”[3].  After PW1 said some words to the crowd, they became more hostile towards PW1.  The Respondent said he closed the door because “the door impeded his job to take photos”[4]. 

Magistrate’s reasons for verdict

15.  In her analysis of the evidence, as I had said, she accepted the evidence of PW1 as honest and reliable.  In analysing the evidence of the Respondent, the learned Magistrate observed from the CCTV recordings that “Until the act of closing the door, the recording showed that he had continued to move away from PW1 and positioning himself at a reasonable distance from PW1 when he took photographs of PW1 at various times.”[5]  The learned Magistrate accepted that this was consistent with the Respondent’s claim that he wanted to take picture of PW1 from the front.

16.  The learned Magistrate accepted that after the Respondent closed the door, the Respondent did not stand in front of PW1 or between PW1 and the door.  Therefore, there is no evidence to suggest that the path to the door was blocked after the Respondent closed the door.          

17.  The learned Magistrate also observed that the Respondent claimed that he was not thinking about what would happen.  She said it showed “an utter lack of concern for PW1, the risk of violence against PW1 or for the crowd, only a self-serving determination to take a good photograph”[6].

18.  The learned Magistrate went on to say:

“Defendant claimed to be an expert photographer and has been documenting events of Hong Kong for years. His behaviour of getting in the path of the subject, thereby altering a natural-occurring event, is incredible. As can be seen from the numerous press members or members of the public who were taking photographs at the scene, they all kept a respectful distance from PW1.”[7]

19.  Finally, the learned Magistrate said, “although the Defendant’s behavior is highly suspicious”[8], she went on to say that she cannot find any evidence to support the suggestion that the Respondent had intended to assist the crowd to continue the commotion.  Therefore, she acquitted the Respondent.

20.  After a few minutes’ adjournment, Mr Delaney who represented the Respondent, then applied for costs of the trial.  In his submission[9], Mr Delaney did submit that the learned Magistrate’s opinion that the actions of the Respondent was “highly suspicious”, was “a hurdle but not an insurmountable one in these circumstances”[10]in his costs application.

21.  Mr Delaney also submitted, inter alia, that the Respondent had elected to remain silent when interviewed, and said that the fact that he remained silent “is a matter which is utterly neutral here, utterly neutral”[11].

22.  The Prosecution in opposing the application, reiterated that the Respondent’s action has brought suspicion on himself and they do not rely for the purposes of the costs application, the Respondent’s exercise of his right to silence during the investigation.

23.  The learned Magistrate, in four sentences, then ruled that the Respondent is entitled to his costs.

24.  It is also to be noted that at paragraph 20 of the learned Magistrate’s Reasons for Order, the learned Magistrate said:

“20. There was no evidence that the defendant was in contact with or knew anyone from the crowd. … The defendant could not have had any prior knowledge or predicted that the crowd would cause a commotion or that an unidentified individual would attack PW1.”[12]

25.  I will only opine that whether there is evidence that the Respondent knew or in contact with anyone in the crowd is not relevant in this case.  It was clear that the case for the Prosecution relied on circumstantial evidence and for the learned Magistrate to draw an irresistible inference therefrom as to his intention.  Therefore, whether the Respondent could have had prior knowledge that there would be commotion or an attack on PW1, was also not relevant, as the charge is “intent to provoke a breach of peace or whereby a breach of peace is likely to be caused”. 

26.  What was relevant was the fact that as he admitted there was a hostile crowd following PW1.  It was therefore a situation ripe for rowdy and aggressive action against PW1.  Anyone living in Hong Kong in October 2019 would have realized that.  In any event, that is only my observation.      

27.  As this is merely an appeal against the Costs Order, I will not interfere with the learned Magistrate’s acquittal of the Respondent and consider this appeal on the basis that the Respondent was properly acquitted on the evidence as found by the learned Magistrate. 

Legal Principle     

28.  The learned Magistrate in awarding costs under section 3 of the Costs in Criminal Cases Ordinance, Cap 492, referred first of all, the case of Tong Cun Lin v HKSAR[13], where Litton PJ said:

“What then are the governing principles? When a defendant has been brought to trial upon particular charges and is then found not guilty, it is clearly right that he should normally be compensated out of public revenue for the costs incurred in defending those charges. In considering whether, despite this general rule, he should be deprived of all or part of his costs, the judge exercising the discretion must obviously look to his conduct generally, so long as such conduct is relevant to the charges he faced. This cannot be confined to any particular period of time. Since, however, the discretion is being exercised in the context of an acquittal – the averments constituting the charges having been found by the jury as not amounting to the crimes alleged – it follows that, generally speaking, the conduct most relevant to the matters under consideration must be the defendant’s conduct during the investigation and at the trial: How he first responded to the investigators, the answers he gave when confronted with the accusations, the consistency of those answers with his subsequent defence, etc. Wrapped up with this is the strength of the case against the defendant and the circumstances under which he came to be acquitted: These too are relevant to the exercise of the discretion to deprive him of his costs, so long as the judge is not, indirectly, thereby punishing him by taking a view of the facts palpably different from that taken by the jury and reflected in the not-guilty verdict…”[14]

29.  The learned Magistrate also reminded herself that costs are normally ordered for a defendant who was acquitted unless there are “positive reasons for not doing so.  It is a positive reason that a defendant has brought suspicion on himself and has misled the prosecution into thinking their case is stronger than it is”[15].

30.  The learned Magistrate then considered that at paragraph 31, whether the Respondent’s act of pulling the door brought suspicion upon himself, and she said:

“31. …In considering the circumstances at the material time, the defendant had no affiliation with anyone at the scene including the assailant clad in black. …”[16]

31.  As I have said, it is not relevant whether he had an “affiliation with anyone at the scene including the assailant clad in black”, the learned Magistrate could infer from the circumstantial evidence whether the Respondent had the necessary mens rea.   

32.  The learned Magistrate then went on to describe how the Respondent after closing the door, was positioning himself to take photographs of PW1, and kept his distance from PW1. 

33.  Then, very surprisingly, at paragraph 32 of the Reasons for Order, the learned Magistrate then observed that after the door was closed:

“32. …It was PW1’s choice or reaction to stand and stare at the defendant. He could walk unobstructed into Chater House. The defendant did not prevent PW1 from entering Chater House. It is doubtful that the duration of a few seconds could be of any meaningful assistance to the crowd to continue their commotion.”[17]

34.  This was mystifying to me because the learned Magistrate had earlier observed in her reasons for verdict that it was a natural reaction when the door to the building was closed for PW1 to stare at the Respondent. However here, she opined that it was PW1’s “choice or reaction to stand and stare at the Respondent, he could walk unobstructed into Chater House”.  The obstruction had already been caused by the closing of the door.       

35.  Then at paragraph 34, the learned Magistrate seemed to want to explain away her “highly suspicious” remark made in her reasons for verdict which Mr Delaney referred to as a possible “hurdle” in the application for costs.

36.  The learned Magistrate said at paragraph 34 of her Reasons for Order:

“34. While I criticized the defendant for claiming to be an expert photographer and yet his behaviour of getting in the path of PW1 when others present did not was highly suspicious, I do not consider his inadequacy as a photographer amounted to bringing suspicion upon himself. …” [18]

Thus, she has changed the spotlight about the Respondent’s action being highly suspicious to that suspicion being his inadequacy as a photographer. 

37.  The learned Magistrate then went on to reiterate that the Respondent had not prevented PW1 from entering the building, and she said:

“34. …The evidence did not support the allegation that the defendant aided and abetted the crowd or that he had the intention to aid and abet the crowd in continuing the commotion. I find that the defendant did not bring suspicion upon himself and awarded costs to the defendant.”

38.  Subsequently, after hearing the Prosecution’s application for the review, the learned Magistrate dealt with it in the last paragraph of her Reasons for Order by saying that she confirmed the decision to acquit the defendant and the decision to award trial costs to the defence. 

Discussion

39.  As far as the law is concerned, an acquitted party is entitled to costs unless there are positive reasons for not doing so.  Mr Delaney had submitted that the Court of Final Appeal in HKSAR v Coghlan[19] had stated quite clearly that “the appellate court should in general be slow to interfere with the trial judge’s exercise of his discretion”[20], and in Nancy Ann Kissel [21], the Court of Final Appeal pointed out that “a decision involving an exercise of a judicial discretion by the trial Judge will only be interfered with on appeal in limited circumstances”.  The Court of Final Appeal at paragraph 120 had reaffirmed the principle that was clearly stated in House v R[22]:

“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.” (my emphasis)

40.  Mr Delaney argued that the learned Magistrate had found as a fact that the Respondent did not block PW1’s pathway to the door.  PW1 could have walked towards the door and opened it.  Therefore, he submitted that it is plain from the learned Magistrate’s reasons that she did not find that the Respondent had prior knowledge of what would happen to PW1, or any prior knowledge that the crowd could cause a commotion.  The learned Magistrate had accepted the fact the Respondent had closed the door in order to take photographs of PW1. 

41.  As I have noted above, the Prosecution’s evidence was based on circumstantial evidence.  The Prosecution had argued that the learned Magistrate could draw an irresistible inference from the circumstances that the Respondent had the necessary intention to aid and abet as the charge said, “other person unknown to behave in a noisy or disorderly manner with intent to provoke a breach of peace or whereby a breach of peace is likely to be caused”. 

42.  Therefore, as I have noted above, the learned Magistrate did err in her decision that the Prosecution has failed to provide evidence that the Respondent knew others from the crowd or that he conspired with the others in the crowd.    

43.  The Prosecution merely relied on the circumstances which could be seen from the CCTV recordings and PW1’s evidence, and asked the trial Magistrate to draw an irresistible inference therefrom.   

44.  Be that as it may, as the Prosecution had not case stated the acquittal of the Respondent, I am only dealing with the review of the costs order. Mr Delaney had mentioned several times in his submissions that it would be a punishment of the Respondent if he was not allowed his costs. 

45.  I must say clearly here that the award of costs or the refusal of the award of costs cannot be viewed as a reward or as a punishment.  It is plainly decided from the circumstances as outlined in the Tong Cun Lin case that a decision on costs is generally a matter for the trial judge unless it can be shown “that the judge has clearly gone outside the ambit of his powers - such as, for example, taking into account a factor which plainly is not relevant to the exercise of those powers - that an appellate court’s function becomes engaged”[23].

46.  In this case, the Prosecution was basing its opposition to costs on the basis that the Respondent brought suspicion on himself. 

47.  The learned Magistrate, at paragraph 31 of the Reasons for Order, had pointed out that the Court had to consider whether the Respondent’s act of pulling the door brought suspicion upon himself:

“31. …In considering the circumstances at the material time, the defendant had no affiliation with anyone at the scene including the assailant clad in black. The CCTV footage showed that from the time he moved from the carriageway to the pavement, to the time he pulled the door, he was constantly running around the vicinity, positioning himself to take photographs of PW1. …”[24]

Here, the learned Magistrate committed an error in considering again the fact that there is no evidence to show that the Respondent had any “affiliation with anyone at the scene including the assailant clad in black”.

48.  As I have mentioned, it is not necessary when considering the charge against the Respondent for the prosecution to produce any evidence of affiliation or acquaintance with anyone in the crowd.  However, the learned Magistrate chose to use this as one of the basis for not considering that the Respondent had brought suspicion on himself. 

49.  She also went on to say that even after pulling the door closed, the Respondent had kept a distance from PW1 and that he did not block or obstruct PW1 entry into Chater House.  It was PW1’s choice after the door had been closed, “to stand and stare at the defendant”.   

50.  As I have mentioned earlier, the learned Magistrate had already noted that PW1’s reaction for standing and staring at the Respondent after the door had been closed by him, was the natural reaction of someone who was taken aback and did not know what to do.  Therefore, I consider that the learned Magistrate committed an error in her factual and evidential analysis when considering the application for costs.

51.  As Mr William Siu submitted, on behalf of the Appellant on an application for costs, the state of mind of a defendant is irrelevant when considering if the defendant brought suspicion upon himself.  And he cited the case of HKSAR v Rahman Md Sheikh Mojibur[25], where the Court of Appeal held that:

“…Whether or not the defendant brings suspicion on himself and/or results in the prosecution being misled does not logically depend on the defendant’s state of mind.”[26]

52.  It is clear that the learned Magistrate had not only taken into account irrelevant considerations on the issue of costs, she had also failed to properly consider whether the Respondent’s actions in the circumstances as can be seen from the CCTV recordings had brought suspicion upon himself.  As Mr Delaney correctly recognised, when applying for costs before the learned Magistrate, that the learned Magistrate’s conclusion that the actions of the Respondent were “highly suspicious” was a possible “hurdle” to his application for costs.

53.  Therefore, it is incumbent on the Court to look at all the circumstances as related by PW1 and the CCTV recordings that were played in Court.  They clearly showed the Respondent going in front of PW1 and closed the door, and then standing in front but to the right of PW1, and to any observer, the Respondent clearly brought suspicion on himself by his actions.  As also can be seen from the photographs produced in Court, the Respondent by then had already taken many photos of PW1 from different angles.

54.  I have no hesitation whatsoever, in saying that therefore, the Respondent should not be allowed his costs of the trial, on the review, and on this appeal.

55.  Therefore, this appeal is allowed.